Somerville v. Somerville, 2017 ONSC 6006

CITATION: Somerville v. Somerville, 2017 ONSC 6006

COURT FILE NO.: DC-17-849

DATE: 20171019

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Spies, Quigley, and Ellies JJ.

BETWEEN:

Gregory Charles Somerville

Appellant

– and –

Alana Marlane Somerville

Respondent

L. Triano and D. Burton, for the Appellant

D. Willer, Respondent

HEARD at Hamilton: October 6, 2017

Ellies J. (Orally):

Introduction

1The appellant, Mr. Somerville, seeks to set aside the order of Justice Edwards granting the respondent, Mrs. Somerville, summary judgment. That order dismissed Mr. Somerville’s motion to change the order of Justice Sweeny made on July 30, 2015.

2The appellant raises a number of grounds of appeal. We find no merit in any of them.

Analysis

3Justice Edwards was not wrong in proceeding under Rule 16(1) of the Family Law Rules. The motion for summary judgment did not turn only on the legal issue. We do not accept that the order of Justice Sweeny could be set aside on the sole basis that it did not comply with s. 9 of the Child Support Guidelines.

4Pursuant to ss. (7) and (8) of s. 15.1 of the Divorce Act, Justice Sweeny was entitled to make the order that he did, even if it did not comply with the Child Support Guidelines. He was entitled to be satisfied that reasonable arrangements had been made for the support of the children on the basis of the Minutes of Settlement. In order to vary Justice Sweeny’s order, therefore, the appellant was obliged to show more than it was just not in accordance with the Child Support Guidelines. He was required to show a material change in circumstances.

5The respondent moved for summary judgment on the basis that there was no such change, as a result of which there was no genuine issue requiring a trial. In response, the appellant was obliged to put his best evidence forward to show that there was.

6A material change is a substantial, unforeseen change that, if known at the time that an order was made, would have led to a different order for support. In determining whether there was a genuine issue for trial, Justice Edwards was entitled to consider the Minutes of Settlement that were incorporated into Justice Sweeny’s order. Justice Edwards found on the evidence that the respondent had met her burden and that the appellant had failed to meet his. We see no error, let alone a palpable and overriding error, in his reasons in this respect. Nor do we see any basis to sustain the appellant’s allegation that Justice Edwards was biased. Justice Edwards may have erred in holding that there was no disclosure obligation on the respondent; however, the record reveals that such disclosure was ultimately made.

Conclusion

7For these reasons, the appeal is dismissed.

Spies J. Endorsement:

Endorsement

8“For reasons given orally by Justice Ellies, appeal is dismissed. Costs in the amount of $7,500.00 all-inclusive, an amount agreed to, to be paid by the appellant to the respondent.”

___________________________ Ellies J.

I agree

Spies J.

I agree

Quigley J.